United States District Court, D. Montana, Missoula Division
L. Christensen, Chief Judge United States District Court.
the Court is Defendant Republican National Committee's
("RNC") motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6). Defendant argues that this case
should be dismissed because: (1) RNC's use of Plaintiff s
photograph constituted a fair use under federal copyright
law; (2) Plaintiff has failed to state a claim for
intentional interference with prospective economic advantage;
and (3) Plaintiffs state law claim for intentional
interference with economic advantage is preempted by federal
copyright law. For the reasons explained below, the Court
grants the motion in part and denies the motion in part.
AND PROCEDURAL BACKGROUND
Plaintiff Erika Peterman ("Peterman") is a
photographer and is the author and owner of the copyright in
Peterman's photograph ("Work"). Defendant RNC
is a U.S. political organization responsible for developing
and promoting the Republican political platform, as well as
coordinating fundraising and election strategy. RNC
previously campaigned on behalf of Montana U.S.
Representative Greg Gianforte in Montana's Special
Election to fill its lone Congressional seat in the U.S House
of Representatives in 2017.
March 18, 2017, Peterman contracted with the Montana
Democratic Party to take photographs at the annual
Mansfield-Metcalf Dinner in Helena, Montana. She was asked to
take photographs of Democratic Candidate Rob Quist
("Quist") who was the focus of the event. The Work
depicts Quist, wearing a cattleman's hat from behind,
with three bright lights in the distance. On March 21, 2017,
Peterman edited and sent her photographs to the Montana
Democratic Party and gave limited license to the Montana
Democratic Party and Quist's campaign to use the Work.
Peterman filed for registration of her Work with the U.S.
Copyright Office on May 12, 2017.
9, 2017, Peterman was notified that RNC had sent out mass
direct mailings using her Work to negatively depict Quist.
The image on the RNC mailer is a direct copy of
Peterman's Work, altered with a treble clef inserted over
the bottom left of the image and the text, "For Montana
Conservatives, Liberal Rob Quist Can't Hit the Right
Note." The back of the mailers contained standard
political advertisement disclaimer language that they were
paid for by RNC and were not authorized by any candidate or
16, 2017, Peterman filed her Complaint against RNC alleging
copyright infringement and intentional interference with
economic advantage based on RNC copying, using, and
distributing her Work. (Doc. 1.) On September 9, 2017, RNC
filed a Motion to Dismiss for Failure to State a Claim,
arguing that its use of the Work constituted a fair use under
federal copyright law and that Peterman failed to state a
claim for intentional interference with economic advantage.
(Doc. 7.) Additionally, RNC argued that Peterman's state
law claim for intentional interference with economic
advantage was preempted by federal copyright law.
12(b)(6) motions test the legal sufficiency of a pleading.
Fed.R.Civ.P. 12(b)(6). Under Federal Rule of Civil Procedure
8(a)(2), a complaint must contain "a short and plain
statement of the claim showing that the pleader is entitled
to relief." "To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'" Ashcroftv. Iqbal, 556 U.S. 662,
678 (2009) (quoting BellAtl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim has facial plausibility when
the court can draw a "reasonable inference" from
the facts alleged that the defendant is liable for the
misconduct alleged. Id. These facts need not be
overly specific, but they must "give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests." Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (quoting Twombly, 550 U.S. at
Rule 12(b)(6), the court is generally limited to the
allegations of the complaint, "which are accepted as
true and construed in the light most favorable to the
plaintiff." Lazy YRanch LTD v. Behrens, 546
F.3d 580, 588 (9th Cir. 2008). Nonetheless, a court may
dismiss a complaint if it lacks a cognizable legal theory.
SmileCare Dental Group v. Delta Dental Plan of
California, Inc., 88 F.3d 780, 783 (9th Cir. 1996).
Dismissal for failure to state a claim is proper only
"if it appears beyond doubt" that the non-moving
party "can prove no set of facts which would entitle him
to relief." Vasquez v. L.A. County, 487 F.3d
1246, 1249 (9th Cir. 2007) (internal quotation marks and
"assertion of fair use may be considered on a motion to
dismiss, which requires the court to consider all allegations
to be true, in a manner substantially similar to
consideration of the same issue on a motion for summary
judgment, where no material facts are in dispute."
See Leadsinger, Inc. v. BMG Music Publ'g, 512
F.3d 522, 530 (9th Cir. 2008). Fair use doctrine
"presents a mixed question of law and fact" that
"requires a case-by-case determination whether a
particular use is fair." Harper & Row
Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560
(1985). However, "[i]f there are no genuine issues of
material fact, or if, even after resolving all issues in
favor of the opposing party, a reasonable trier of fact can
reach only one conclusion, a court may conclude as a matter
of law whether the challenged use qualifies as fair use of
the copyrighted work.'" Hustler Magazine, Inc.
v. Moral Majority, Inc., 796 F.2d 1148, 1151 (9th Cir.
1986). While a plaintiff must plead facts sufficient to prove
a justiciable cause of action, it is not necessary to plead
facts that disprove fair use to survive a Rule 12(b)(6)
motion to dismiss. See Garner v. Higgins, 2015 WL
574352, at *3 (W.D. Va. Feb. 11, 2015).
claims that RNC violated 17 U.S.C. § 106 by infringing
her protected copyright in her Work. (Doc. 1 at 5-7.) RNC
seeks dismissal of Peterman's copyright infringement
claim on the basis of fair use. (Doc. 8 at 4.) To state a
claim for copyright infringement, a plaintiff must allege:
(1) ownership of a valid copyright, and (2) copying of a
protectable expression by the defendant. Baxter v. MCA,
Inc.,812 F.2d 421, 423 (9th Cir. 1987). Under Section
501 of the Copyright Act, "[t]he legal or beneficial
owner of an exclusive right under a copyright is entitled,
subject to the requirements of ...